Archives: April 2014

EPA Interprets its Clean Water Act Jurisdiction in Proposed Rule

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The Clean Water Act (CWA) was passed in 1972 to protect and remediate America’s waters. While the country has made great strides toward these goals in the years since the CWA’s enactment, one-third of America’s lakes, rivers, and coastal waters still remain unsafe for fishing and swimming. The federal government intends to increase the effectiveness of the CWA by clarifying its scope and expanding its application.

On April 21, 2014, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers jointly issued a proposed rule, “Definition of ‘Waters of the United States’ Under the Clean Water Act.” The rule, which will define the scope of waters protected under the CWA, is meant to clarify the agencies’ regulatory jurisdiction for streams and wetlands under the CWA. The rule could expand EPA’s and the Corps’s jurisdiction, subjecting more projects and activities to the CWA’s permitting requirements for discharges, pollutants, and fill materials. In more clearly defining “waters of the United States,” the agencies hope to alleviate some of the confusion over the CWA’s reach created by the Supreme Court’s decisions in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (2001) 531 U.S. 159 and Rapanos v. United States (2006) 547 U.S. 715.

The proposed rule clarifies that the CWA protects most seasonal and rain-dependent streams, and wetlands near rivers and streams. Specifically, the proposed rule defines “waters of the United States” as “traditional navigable waters; interstate waters, including interstate wetlands; the territorial seas; impoundments of traditional navigable waters, interstate waters, including interstate wetlands, the territorial seas, and tributaries, as defined, of such waters; tributaries, as defined, of traditional navigable waters, interstate waters, or the territorial seas; and adjacent waters, including adjacent wetlands.” In addition, the agencies propose that “other waters” (those which do not fit within the proposed categories of waters jurisdictional by rule) would only be jurisdictional upon a case-specific determination that that, either alone or in combination with similarly situated ‘‘other waters’’ in the region, they have a ‘‘significant nexus’’ to a traditional navigable water, interstate water, or the territorial seas. The rule would also offer a definition of significant nexus and explain how similarly situated ‘‘other waters’’ in the region should be identified.

The rule will not be finalized until completion of a scientific assessment. The proposed rule contains a draft assessment, comprised of a review and synthesis of more than one thousand pieces of peer-reviewed scientific literature.

EPA and the Corps seek input on how the CWA should apply to “other waters” — those not fitting the definition of waters of the United States — and whether waters spanning multiple ecological regions should be evaluated individually or collectively. Comments on the proposed rule are due to EPA by July 21, 2014.

The proposed rule can be found at http://www2.epa.gov/sites/production/files/2014-04/documents/fr-2014-07142.pdf.

The proposed rule also preserves the CWA’s exemptions for agriculture. In collaboration with the U.S. Department of Agriculture, the agencies developed an interpretive rule to ensure that certain specific water conservation practices will not be subject to dredge or fill permitting requirements. This interpretive rule will go into effect immediately. The agencies recognize, however, the value of receiving public comment on the interpretive rule and are publishing it by separate notice in the Federal Register.

The public is encouraged to provide their comments on the interpretive rule to the docket on the interpretive rule, Docket Id. No. EPA–HQ–OW–2013–0820, and not the docket for the proposed CWA jurisdiction rule.

The interpretive rule and the request for comments can be found at http://water.epa.gov/lawsregs/guidance/wetlands/agriculture.cfm.

Variance from Setback Requirement Allowed for Seaside Home Replacement

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On March 14, 2014, in Eskland v. City of Del Mar (Mar. 14, 2014) ___ Cal.App.4th ___, Case No. D061370, the Fourth District Court of Appeal upheld the City of Del Mar’s decision to grant a variance from the zoning code for a house that violated the local setback requirement. The court, affirming the judgment below, found that the City had not abused its discretion in allowing the encroachment, as the variance was permitted under the local municipal code.

Jon Scurlock owned a house on a steep seaside lot in the City of Del Mar. The house lay only eleven feet from the road, and thus did not comply with the 20-foot front yard setback requirement. The court assumed for the sake of argument that when the house was originally built, it complied with the setback requirement in existence at that time.

Scurlock proposed to tear the house down and build a new house in its place. After the design review board approved the plans, Scurlock applied to the city planning commission for a variance from the setback requirement, since the new house would be built in the footprint of the old house and would therefore encroach to the same degree. The planning commission approved the variance, citing special circumstances of the lot warranting approval.

The Eskelands, neighbors of Scurlock, filed a writ of administrative mandamus seeking to set aside the City’s approval of the variance. The trial court denied the petition, ruling that substantial evidence supported the city’s approval. The Eskelands appealed.

The parties disputed whether the new house would expand or maintain the existing degree of structural nonconformity, but the court found it unnecessary to resolve the issue because the municipal code permitted property owners to expand the degree of nonconformity pursuant to a variance. The court found that the record contained the requisite substantial evidence of “special circumstances” to support the variance. The topography of Sclurlock’s lot was more significantly sloped than neighboring properties, making relocation of the house to another part of the property expensive, impractical, and potentially dangerous. Furthermore, the street curved in a C-shape in front of the property, creating a smaller setback space. The planning commission had concluded that locating a single-family residence elsewhere on the property would cause adverse impacts to the steep slopes.

The court rejected the Eskelands’ contention that Scurlock was impermissibly continuing a structural nonconformity in violation of the municipal code. The court pointed out that a variance and the continuance of a nonconformity are completely separate legal concepts. The concepts’ locations in separate code sections lent credence to the court’s interpretation that the prohibition on structural nonconformities was not intended to trump the provision for variances.

The standard of review in administrative mandamus affords a strong presumption of correctness to the agency. Under this presumption, the court found that the City had properly considered the evidence in reaching its findings, and upheld Scurlock’s variance.

Eastern District Denies Sierra Club’s Motion for Summary Judgment, Grants Tahoe Regional Planning Agency’s Cross-Motion for Summary Judgment in Challenge to Lake Tahoe Regional Plan Update

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On April 7, 2014, the United States District Court for the Eastern District of California issued an order in Sierra Club v. Tahoe Regional Planning Agency (April 7, 2014), E. D. Cal. Case No. 2:13-cv-00267 denying plaintiffs Sierra Club and Friends of the West Shore’s motion for summary judgment, and granting defendant Tahoe Regional Planning Agency’s (TRPA’s) cross-motion for summary judgment. The outcome upheld TRPA’s approval of its Regional Plan Update (RPU), which guides all land-use planning and development within the Lake Tahoe Region.

Background

In 2012, TRPA certified the final EIS for and approved its RPU. Key components of the RPU include TRPA’s adoption of a Regional Transportation Plan and the incorporation of Lake Tahoe’s Total Maximum Daily Load (“TMDL”) into its Regional Plan.  Plaintiffs challenged the approval, contending the RPU violated the Tahoe Regional Compact’s requirements.  Plaintiffs overarching contention was that TRPA failed to adequately evaluate potential impacts associated with the RPU’s strategy of loosening certain development restrictions in order to incentivize redevelopment in urban areas and remove existing development in outlying areas, based on the premise that this strategy would enable more environmentally sensible land use.  Plaintiffs also argued TRPA’s findings that the RPU would achieve and maintain adopted threshold standards was not supported substantial evidence as required under the Compact.  TRPA, in contrast, characterized the RPU as incorporating contemporary planning principles, current science, and a focus on redevelopment incentives to convert substandard development into modern, environmentally beneficial, visually attractive, walkable, bikeable communities.   TRPA argued that its finding were supported by substantial evidence and that the PRU would accelerate threshold attainment by creating incentives to restore sensitive lands and increasing BMP compliance.

Both parties agreed that disposition at the summary judgment stage was appropriate given that the case was based on an administrative record. The court refused to consider documents outside the record which post-dated the TRPA’s approval of the RPU. The court reviewed Sierra Club’s claims that TRPA violated the Compact in approving the RPU under an arbitrary and capricious standard, which confers deference to agencies.

The District Court’s Decision

Plaintiffs first argued that TRPA failed to analyze the potential localized impacts from concentrating impervious surface coverage in urban centers. Plaintiffs contended that TRPA’s failure to conduct a watershed-level analysis on the effect of geologically-concentrated coverage and its decision to conduct only a region-wide study was arbitrary and capricious. The court disagreed holding TRPA’s choice of modeling was an exercise of its scientific expertise and entitled to deference. In reaching this conclusion, the court stated that although Plaintiffs may prefer a different model, TRPA’s choice of the TMDL model was supported by substantial evidence and the EIS explained why Plaintiffs’ proposed watershed-level analyses were neither feasible nor necessary given the programmatic nature of the EIS.  The court further held that TRPA was not required to address “every possible scientific uncertainty” and that the EIS’s region-wide analysis was consistent with the regional scale of the RPU.  The court found TRPA’s decision to defer site-level analysis was reasonable because site-level analysis was required under the RPU when local jurisdictions approve Area Plans or when specific development projects are proposed.   The court also rejected Plaintiffs’ argument that compliance with Tahoe TMDL was not mandatory and that TRPA could not rely on the TMDL to support its findings that water quality thresholds would be attained under the RPU.

Plaintiffs’ second argument was that the EIS failed to examine the cumulative impacts to soil conservation resulting from increased development and concentrated impervious surface coverage in urban centers. The court, however, found that TRPA’s conclusion that the RPU would not have a significant effect on local soil conditions was supported by the record. The court stated although EIS’s discussion of the RPU’s soil related impacts was not as thorough as its discussion of water-quality impacts, this was consistent with the fact that the vast majority of comments focused on RPU’s potential impact on water quality.

Next, Plaintiffs argued that TRPA improperly relied on BMP installation and maintenance in concluding that the RPU would not significantly affect water quality.  TRPA responded to this argument noting that under the RPU all new or re-development is required to install and maintain BMPs as a condition of project approval.  Plaintiffs took issue with the past failures of the agency to enforce BMP retrofit requirements for existing development, but the court found that this view overlooked the RPU’s inclusion of programs designed to incentivize and improve the maintenance of BMPs for these parcels. Given that BMP maintenance is mandatory under TRPA ordinances, the court opined, the agency was entitled to conclude that its BMP ordinance would be largely followed.

Finally, TRPA argued that, contrary to plaintiffs’ assertions, its conclusion that the RPU would attain and maintain ozone threshold standards was supported by substantial evidence. The court found TRPA was not required to make a finding that the Lake Tahoe Air Basin is currently in attainment of all threshold standards. Rather, it was only required to find that the RPU implemented a plan that would achieve and maintain threshold standards. The RPU implemented a number of programs and policies designed to reduce automobile dependency. This, with other findings, constituted substantial evidence supporting TRPA’s conclusion that the Regional Plan, as amended by the RPU, would achieve and maintain ozone threshold standards.

The court also rejected Plaintiffs’ argument that TRPA failed to adequately explain its rationale for changing its conclusion regarding one of its ozone threshold in the Final EIS.  The court noted that data unavailable when TRPA published its draft EIS had led to a change its conclusion.  This new data indicated the region was in attainment with the all ozone threshold standards. The court deferred to TRPA’s scientific determination that data from a single Nevada monitoring site was representative of conditions throughout the Lake Tahoe Air Basin based on historical trends and that this data was sufficient to evaluate attainment of ozone thresholds.  The court noted that TPRA acknowledged the limited data available from monitoring sites during the relevant time frame and took this into account in its determination that there was a “moderate” confidence level for this conclusion.  The court found TRPA’s conclusion was supported by substantial evidence stating that TRPA was not required to demonstrate complete certainty in its findings.

RMM partners Whitman Manley and Howard (Chip) Wilkins represented TRPA.

OPR Solicits Input in Effort to Improve State Groundwater Management

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On January 27, 2014, Governor Jerry Brown issued the California Water Action Plan, which highlights the challenges for managing the State’s water resources and outlines strategic goals and actions to provide more reliable water supplies, restore important species and habitat, and establish a more resilient and sustainably managed water resource system for farms, ecosystems and communities. The plan specifically identified a number of actions to implement sustainable groundwater management practices. One of those actions called for legislation to provide local and regional agencies with comprehensive authority to manage groundwater. If those agencies fail to achieve sustainable management, the Plan proposes allowing the state to temporarily assume responsibility for groundwater management. The Governor’s Office of Planning and Research (OPR) is now seeking input on actions that can be taken to improve groundwater management in California.

Groundwater control has generally been left to local efforts and courts; California has no comprehensive authority for monitoring or regulating groundwater. One primary objective of the Plan is to establish a legal framework through which to improve groundwater management and expand groundwater storage capacity.

OPR planned two sustainable groundwater management workshops, on March 24 and April 16, facilitated by the California Environmental Protection Agency, the California Department of Food and Agriculture, and the California Natural Resources Agency. The purpose of the workshops is to solicit ideas and approaches to groundwater management.

OPR now seeks input on the following questions:

  • What new or modified statutory authorities do local and regional agencies need to manage groundwater more effectively?
  • What would help local agencies overcome barriers to funding for conservation, projects, and programs?
  • What types of governance structures are most effective for managing groundwater locally, and should these models be encouraged?
  • What specific data and information do local managers need to succeed? What should be done to help them obtain the data?
  • What can be done to help local and regional agencies manage a basin or sub-basin that spans multiple jurisdictions?
  • Are there improvements to the groundwater adjudication process that would make it more useful and cost-effective for local authorities?
  • What role should groundwater management plans play, and does their content need to change?
  • What incentives could local and regional agencies be given to improve groundwater management?
  • Should local groundwater management planning be connected, through formal processes, to land use decisions, county general plans, or integrated regional water management plans? If so, what kind of formal processes?

More information can be found at:

http://www.opr.ca.gov/docs/Sustainable_Groundwater_Management_3-7-2014.pdf

http://www.opr.ca.gov/docs/joint_workshop_notice.pdf

Written comments are due to OPR by April 25, 2014.

Tahoe Regional Planning Agency Will Proceed with Regional Plan Update After Federal Court Victory

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On April 7, 2014, the United States District Court for the Eastern District of California issued an order granting defendant Tahoe Regional Planning Agency’s (TRPA’s) cross-motion for summary judgment against Sierra Club and Friends of the West Shore. In doing so, the court upheld TRPA’s approval of its Regional Plan Update (RPU).

The court held that TRPA’s findings were supported by substantial evidence in the record, deferring to the agency’s expertise where the parties engaged in factual disputes. TRPA used the Total Maximum Daily Load model to reduce the flow of pollutants into the lake, rather than relying solely on strict limits on impervious surface coverage to achieve this goal, as it had done under the previous plan. The court determined that this decision was reasonable and supported by substantial evidence in the record, including numerous reports and studies prepared by TRPA. The court also upheld TRPA’s methodology for examining cumulative impacts to soil conservation, and stated that the agency was entitled to conclude that its mandatory, incentivized best management practices ordinance would be followed and would help improve lake clarity. Finally, the court upheld TRPA’s finding that the Regional Plan, as amended by the RPU, would achieve and maintain the ozone threshold in the Tahoe basin.

RMM partners Whitman Manley and Howard (Chip) Wilkins represented TRPA in the case.

Third Appellate District Court Finds Analysis of Urban Decay and Energy Impacts in a Programmatic EIR for Commercial Development Fails to Comply with CEQA

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California Clean Energy Committee v. City of Woodland, Case No. C072033 (April 1, 2014)

Petrovich Development Company, LLC proposed to develop a 234-acre regional shopping center knows as “Gateway II” on undeveloped agricultural land located on the outskirts of the City of Woodland. After preparing a programmatic EIR, the city council reduced the size of the project to 61.3 acres and approved the project. California Clean Energy Committee (CCEC) filed a petition for writ of mandate challenging the city’s approval of the project. The trial court denied the petition.

On appeal CCEC contended (1) the trial court erred in concluding the project did not conflict with the city’s general plan, (2) the city’s mitigation measures are insufficient to ameliorate the urban decay that the project could cause, (3) the city did not give meaningful consideration to feasible project alternatives such as the mixed-use alternative, and (4) the final EIR did not properly identify and analyze potentially significant energy impacts generated by the project.

In an unpublished portion of the opinion, the court rejected CCEC’s first claim that city’s actions in approving Gateway II violated the State Planning and Zoning Law because the project was inconsistent with the city’s general plan policy of revitalizing its downtown. The court held the CCEC had failed to preserve this argument because its CEQA petition had failed to plead a separate violation of the Planning and Zoning Law.

With respect to CCEC’s claims regarding the City’s urban decay mitigation measures, the court agreed with CCEC that the measures were inadequate to mitigate the urban decay anticipated to result from the project. The mitigation measures the city adopted required the developer (1) to apply for a master conditional use permit subject to future evaluation and potential further environmental review and indicating a list of specific project uses that “shall primarily consist of regional retail uses that do not include entertainment uses and other uses that would compete with retail in Downtown Woodland”; (2) to submit a market study and urban decay analysis for review and approval by the city’s Community Development Department showing either that adequate retail demand exists or require additional mitigation or an alternate use; (3) to contribute funds toward the development of a “Retail Strategic Plan” to be prepared by the city; (4) to contribute funds toward the preparation of an “Implementation Strategy for the Downtown Specific Plan” to be prepared by the city; and (5) to “coordinate with the current owner of the County Fair Mall to prepare a strategic land use plan for the County Fair Mall to analyze potential viable land uses for the site.” The EIR determined, however, that even with the implementation of this mitigation, the city still anticipated the urban decay impact to be significant and unavoidable, in part because it was unknown at the time of approval what specific uses and stores could be proposed in the future in the project area.

The court found, as to the first mitigation measure, it was permissible under CEQA because it served to ensure the primary retail uses for the development will be regional and would not outright ban all retail uses that compete with the city’s downtown. The court also accepted the city’s representation that it “merely found that this measure would help, albeit not enough to avoid the significant urban decay impact identified by the EIR.” The court found, however, that the measure was inadequate, standing alone, to mitigate the potential adverse impacts of the development.

The court found that the second mitigation measure, by requiring the developer to prepare the market study, impermissibly ceded the city’s responsibility for studying an environmental impact to the developer. The court rejected CCEC’s claim that the city council erred by delegating the responsibility to implement the mitigation measure to the community development department, finding that delegation of responsibility for a monitoring program is appropriate under CEQA. Further, the court found the market study measure was inadequate because it did not commit the city to any specific mitigation action or impose any performance standards for determining whether it needed to undertake any future measures. Despite the fact that the EIR was a programmatic review which anticipated potential future environmental review for site-specific discretionary projects, the court concluded that, given the city’s recognition that the project would cause urban decay, the mitigation was required to do more than merely agree to a future study of the problem.

The court found the third and fourth mitigation measures were similarly inadequate for their failure to commit the city to any feasible or enforceable mitigation measures to ameliorate the adverse effects of the project on urban decay elsewhere in Woodland. The requirement for preparation of the Retail Strategic Plan and Implementation Strategy for a downtown specific plan appeared in the Draft EIR without further discussion or analysis. The final EIR adopted these mitigation measures without elaboration. The court explained that although mitigation fee programs may constitute adequate mitigation to address the adverse effects of a project, the mere payment of fees does not presumptively establish full mitigation for a discretionary project if there is no evidence that there is an established fee program in place. Here, the court found the city’s EIR did not adequately assess the scope of the program or fees necessary to adequately address the urban decay impacts expected to result from the project.

Finally, the court found that the fifth measure, although it purported to alleviate expected urban decay at Woodland’s County Fair Mall, required the city to take no action other than to coordinate with the current owner to prepare a plan for viable land uses at the County Fair Mall. The court found the mitigation measure does not require any action by the city to mitigate the urban decay it may discover to result for the County Fair Mall. As such, the court held this purported mitigation measure was inadequate. The court found that, though the EIR was a programmatic EIR, tiering of environmental review and deferring environmental analysis and mitigation measures to later phases would only be appropriate in cases where the impacts or mitigation measures are specific to those later phases. Here, because the EIR studied and attempted to mitigate the urban decay effects from the project as a whole, the city could not be permitted to excuse inadequate mitigation by putting off corrective action to a future date.

The court then held the city failed to comply with CEQA when it rejected the mixed-use alternative as infeasible. The Draft EIR concluded that the alternative was infeasible due to economic considerations; however, the city council’s findings rejected the alternative as environmentally inferior to the project. The court found the city had adopted a rationale for rejecting the alternative that was unsupported by the EIR analysis, which assumed certain impacts would be similar to the project impacts.

Finally, the court found the city’s treatment of energy impacts was inadequate. The court noted that the EIR’s discussion of energy lacked detail as it comprised less than one page. Furthermore, the court found the discussion inadequate as it did not provide an assessment of or mitigation for certain energy impact categories set forth in Appendix F of the CEQA Guidelines including transportation energy impacts, construction energy impacts, and renewable energy impacts. While the EIR did require the project’s compliance with the state building code and green building standards, the court found such standards alone would not adequately mitigate construction and operational energy impacts of the project.

Second District Court of Appeal Holds EIR/EIS for the Newhall Ranch Resource Management and Development Plan and Spineflower Conservation Plan Complies with CEQA

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In Center for Biological Diversity v. Department of Fish and Wildlife (Mar. 20, 2014) ___ Cal.App. ___, Case No. B245131, the Second Appellate District reversed the trial court judgment granting a petition for writ of mandate challenging the California Department of Fish and Wildlife’s (Department) approval of the Newhall Ranch Resource Management and Development Plan and Spineflower Conservation Plan. In the published portion of its opinion, the court held that the provisions of the Fish and Game Code supported a determination that live trapping and transplantation of a protected species of fish does not constitute an unlawful taking when undertaken by the Department for conservation purposes. The court also found the Environmental Impact Report’s analysis of cultural resources, alternatives, impacts to Steelhead smolt, and impacts to spineflower complied with CEQA.

The Newhall Land and Farming Company proposed an almost 12,000-acre Specific Plan area approved by Los Angeles County in 2003 and to be built out over a number of years. After the local county approved an environmental impact statement for the proposed development, the Department prepared and certified an EIR for the project—a Resource Management and Development Plan and Spineflower Conservation Plan. The EIR analyzed the potential environmental effects of issuing incidental take permits and a streambed alteration agreement under the project. The construction of the project would impact, among other things, the stickleback, a fish protected under Fish & Game Code §5515(a)(1) as a “fully protected species.”

The Center for Biological Diversity filed a petition for writ of mandate challenging the Department’s actions. The trial court granted the writ petition, finding, among other things, that the department failed to prevent the taking of the stickleback. The Department and the developer appealed. The court of appeal reversed, holding that the trial court erred in granting the petition.

The court found substantial evidence supported the Department’s conclusion that no take of the stickleback would occur. The court found that the EIR contained mitigation measures to exclude stickleback from any construction areas in the river and to trap and relocate any stranded stickleback to other parts of the river in temporary containers. The court found substantial evidence supported a determination that no mortality would occur given the extraordinary measures taken by the Department to ensure the sticklebacks’ safety, including undertaking surveys of stickleback habitat prior to developing its plan, preparation of ten different studies, and employing the expertise of one of the leading authorities on stickleback preservation. The extensive mitigation measures, coupled with the expert’s discussion, constituted substantial evidence no deaths would result.

The court also rejected CBD’s contention that the mitigation measures themselves would constitute a taking prohibited by Fish and Game Code §§86 and 5515(a)(1). Those sections defined a prohibited take as the “catch, capture, or kill” of protected fish. After a thorough review of pertinent sections of the code, along with their legislative histories, the court agreed with the Department and developer that the use of live trapping and transplantation techniques approved in Fish and Game Code §2061 would not constitute a prohibited take or possession. The court reasoned the entire statutory scheme must be construed together and section 2061 allows for live trapping and transplantation when performed for conservation purposes. Such techniques, as explained by the Department’s expert, can involve the possession and movement of the stickleback in containers to parts of the river that would not be impacted by construction. Therefore, the court concluded the mitigation measures would not result in an unlawful take or possession of stickleback.

The court also rejected CBD’s claims that the EIR failed to adequately address the cultural resources impacts of the project. As an initial matter, the court found CBD had forfeited its cultural resources claims by failing to raise such issues during the public comment period. As a result, the court held CBD failed to exhaust administrative remedies and Department had no obligation to respond to untimely comments. Though finding the claims waived, the court addressed these claims on the merits and rejected them, finding the cultural resource analysis was supported by substantial evidence. The analysis in the EIR was based on extensive research, surveys, and studies performed by consultants with expertise in the field. The consultants undertook excavations of areas that the research and studies indicated resources might be present. Furthermore, the court found there was no evidence that the consultant have failed to uncover any human remains. Though human remains had been found near the project site, the court found that those earlier, off-site discoveries did not require the Department to conduct additional plug tests on site to confirm the consultant’s conclusion. The court also upheld the cultural resources mitigation measures set forth in the EIR as adequate and in full compliance with CEQA Guidelines §15126.4(b)(3)(A).

The court rejected CBD’s claim that the Department’s determination regarding the feasibility of one of the alternatives was not supported by substantial evidence. The court found that, in general, the alternatives were appropriate because they were required to follow the Newhall Ranch Specific Plan. In considering the objectives of the specific plan, the alternative in question would not meet the project objectives to provide a new major community with industrial, commercial, and residential uses because the alternative lacked commercial uses in one planning area and had no connectivity to the easternmost portion of the project area. Furthermore, the alternative was economically infeasible based on application of an industry metric of the cost per developable acre compared to the proposed project. The court upheld this methodology and found substantial evidence supported the Department’s determination regarding the infeasibility of the alternative.

The court rejected CBD’s claims that the EIR failed to address the potential effects on steelhead smolt downstream of the project area due to dissolved copper discharges.  Again, the court found CBD had forfeited its claims for failing to raise them during the public comment period. Though waived, the court addressed the claims and found that there were no steelhead smolt in the project area because the habitat would be below the dry gap where the river goes underground. Furthermore, the dissolved copper discharged to the river would be below the California Toxics Rule Threshold with compliance with regulatory requirements and implementation of mitigation measures and design features. The court found substantial evidence supported the Department’s determination that the project’s impacts on steelhead smolt would be less than significant.

The court rejected CBD’s claims of flaws in the EIR’s analysis of impacts to the San Fernando Valley spineflower, which is listed as endangered under the California Endangered Species Act (CESA) and is known to occur only in the project area and one other location in Ventura County.  The Department issued an incidental take permit for spineflower, allowing take of 24% of the habitat within the Specific Plan area. The court found substantial evidence supported the mitigation plan for the spineflower. The Department had employed 43 biologists who conducted 21 surveys to identify the potential spineflower habitat. The Conservation Plan would dramatically expand the area for potential growth of the spineflower: from 13.88 acres of growth to 56.79 acres of core growth, 110.77 acres of buffer and 42.90 acres of expansion areas. The Plan would ultimately increase the preserve areas from two to five. The court also found that Department’s comprehensive monitoring plan did not constitute impermissible deferral of mitigation, but rather called for future research, which represented “sound ecological management.”

In an unpublished portion of the opinion, the court upheld the EIR’s greenhouse gas analysis. The Department employed a significance threshold for greenhouse gas emissions premised on the reduction target established under the California Global Warming Solutions Act (AB 32) where GHG emissions would be significant if the project would impede achievement of a reduction in statewide GHG emissions to 1990 levels by 2020.  The court held the Department had discretion to employ this threshold and concluded the threshold was appropriate.  The court found the GHG analysis complied with CEQA because it was consistent with the requirements for such analysis set forth in CEQA Guidelines §15064.4(b)(1)-(3) and was supported by substantial evidence.

Court of Appeal Finds Rodeo Categorically Exempt from CEQA

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Citizens for Environmental Responsibility v. State of California ex rel. 14th District Agricultural Association (Mar. 26, 2014) ___ Cal.App. ___, Case No. C070836.

On March 26, 2014, the Third District Court of Appeal affirmed the trial court’s denial of injunctive relief against a rodeo. Appellants, an environmental group concerned about possible water quality impairment due to manure runoff from the rodeo, claimed the 14th District Agricultural Association violated CEQA by approving an exemption from environmental review for a rodeo held at the Santa Cruz County Fairground in 2011. The District had found the rodeo exempt from CEQA review under the Class 23 categorical exemption for normal operations of existing facilities for public gatherings. Appellants argued that the Class 23 exemption did not apply here because (1) the rodeo project impermissibly included mitigation measures in its determination that the project was exempt, and (2) the unusual circumstances exception to the exemption applied. The Court of Appeal disagreed.

A Class 23 exemption covers “normal operations of existing facilities for public gatherings for which the facilities were designed, where there is a past history of the facility being used for the same or similar kind of purpose.” This means similar activity has been occurring for at least three years and there is a reasonable expectation that the project would not represent a change in operation of the facility. The court noted that the fairground had hosted dozens of livestock and equestrian events annually for decades. The court rejected appellants’ contention that the exemption was impermissibly premised on proposed mitigation measures. The alleged mitigation measures, which dealt with manure disposal, had been in place years before the proposed rodeo, and had been formalized in a manure management plan in 2010. Thus, the court found that the plan was not a new measure proposed for or necessitated by the rodeo project, and was instead part of the ongoing “normal operations” of the fairground.

Finding that no mitigation measure precluded application of a categorical exemption, and finding that the Class 23 categorical exemption applied to the project, the court turned to appellants’ second argument that the rodeo fit within the unusual circumstances exception to the exemption.

The court laid out a two-part test for the unusual circumstances exception: first, determine whether the project presents unusual circumstances. If there are unusual circumstances, the court then determines whether there is a reasonable possibility of a significant effect on the environment due to the unusual circumstances. In assessing whether the rodeo project presented any unusual circumstances, the court looked at whether the circumstances of the project differed from the general circumstances of projects covered under the exemption. The court found that the rodeo did not represent a change in the operation of the fairground, as the project was no different in nature and scope from previous fairground events. In addition, appellants did not provide any evidence that a “normal” fairground would operate any differently. Because the court found no unusual circumstances, it did not reach the second issue of whether there was a reasonable possibility of a significant effect on the environment due to such circumstances.